Monday, February 2, 2015

Expert’s Failure to Disclose Basis for Apportionment Warrants Exclusion of Opinions

The court granted defendant's motion to exclude the opinions of plaintiff's damages expert for failing to disclose the basis for apportionment. "During direct examination, [the expert] explained that he analyzed [defendant's] Technical Requirements Document (TRD) for the IP Multimedia Subsystem (IMS), and . . . concluded that 16.7% of the functionality of the 38.8% of the IMS system -- 6.5% of the system as a whole-'relate to' the [patent-in-suit]. . . . [Defendant] argues that [the expert's] report does not disclose how he determined whether a requirement or component was 'implicated by' the [patent-in-suit]. . . . [The expert] concluded that 6.5 to 7% of [defendant's] IMS network related to the patented subject matter, but provided no basis for how he determined which features 'related to' the patent. This determination provides the entire basis for [his] opinion, and thus requires at least some explanation. Without such, [the expert's] report does not meet the requirements set forth in Rule 26."

Sprint Communications Company LP v. Comcast Cable Communications LLC et al, 1-12-cv-01013 (DED January 29, 2015, Order) (Andrews, J.)

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